Digital Mantraps – Pay Attention To E-Procurement

1. E-Procurement has been mandatory since the end of the transitional periods of the Public Procurement Law Modernisation Act 2016. Nevertheless, there are many uncertainties. Here is an example from current practice:

2. The contracting authority put a public contract out to tender. Since the value of the contract was beyond the relevant threshold values, the tender was car-ried out in an open procedure throughout Europe. The (detailed) selection cri-teria reflect the criteria of § 122 sect. 2 GWB, but formulate them in a docu-ment outside the public notice, which can be reached via a deep link in the notice. Is this sufficient? According to § 122 sect.4 sent. 2 GWB, 41 VgV, the selection criteria must be specified in the public notice, the prior infor-mation or the request for confirmation of interest.

3. The issue has been under discussion for some time. For bidders and for con-tracting authorities there are different aspects to consider. Cum grano salis it may be said: The more exact and direct the access to the criteria is granted, the better it is legally.

3.1 On 20 April 2018, the VK Südbayern (Z3-3-3194-1-59-12/17) decided that a link to the homepage of an procurement platform, where the bidder has yet to find the documents from a large number of documents stored there, was not sufficient. The decisions of VK Nordbayern (RMF-SG21-3194-3-5 and 21. VK-3194-14/17) and VK Südbayern (Z3-3-31941-30.06/17), on the other hand, had to do with cases in which, after all, the tender documents of the tendered contract itself were reached directly. The decisions could be regard-ed as generous and are not (any longer) reliable guidelines, at least outside Bavaria: On 11 July 2018, the Higher Regional Court of Düsseldorf ruled (Verg 24/18) that such a general link does not yet comply with §§ 122 GWB, 41 VgV. According to the Düsseldorf Higher Regional Court, however, it should be sufficient for a (deep) link to go directly to the document or docu-ments containing the selection criteria. It must also be ensured that the links are placed in the correct place; to have it “somewhere” in the data room is not sufficient. Even the theoretical danger that they could be overlooked is harm-ful. In a more recent decision (Verg 11/18) of 25 February 2019), the Higher Regional Court (OLG) of Munich also ruled that a deep link were not a pos-sibility which is provided for in § 41 VgV, but which after all is an admissible extension of the possibilities of publication by case law. The Munich Higher Regional Court rightly points out that the notification form is limited in the number of characters, so that selection criteria cannot necessarily be repro-duced in full. In this respect, it bridges a gap for clients.

3.2 Bidders who wish to take action against a disadvantageous decision for their aim nevertheless still have some arguments worth to consider. However, it is essential to observe the obligation to give notice of defects (§ 160 sect. 3 GWB). An examination for gross award errors could probably be carried out by an procurement chamber, a bidder should not rely on that. In the case of the Munich Higher Regional Court, the bidder had taken this into account.

Contributing Advisors